Ministerial intervention under sections 351, 417 and 501J of the Migration Act 1958

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This information describes the minister’s public interest powers in sections 351, 417 and 501J of the Migration Act 1958 and tells you about the types of cases that might be referred to the Minister and the types of cases that will not be referred to the Minister.

The Minister has powers under the
Migration Act 1958 to replace a decision of a merits review tribunal on a person’s case with a decision that is more favourable to that person if the Minister thinks it is in the public interest to do so.

You should not assume that your request will be referred to the Minister. The Minister does not have to look at your case and does not have to intervene. Most requests are finalised by the Department in accordance with the Minister’s guidelines. Only a small number of requests are referred to the Minister.

Minister’s guidelines

The Minister’s guidelines describe the types of cases that might be referred for the Minister’s consideration. We assess all requests against these guidelines. Requests that do not meet the guidelines will be finalised by us. Most requests do not meet the guidelines and are not referred to the Minister.

The Minister’s guidelines indicate that certain cases that do not meet the guidelines for referral are
inappropriate to consider. The Minister has described the circumstances of these cases in the guidelines. The Minister expects us to finalise such requests without further processing.

Unsuccessful requests

Ministerial intervention is not part of the visa process and very few requests for ministerial intervention are successful. The Minister is not obliged to consider your case or to intervene in your case.

We will inform you and/or your authorised representative in writing of the outcome of your request.

If your request is unsuccessful, and if you have no other immigration matters ongoing, you are expected to leave Australia as soon as possible.

If there are reasons why you cannot depart promptly, you should contact your nearest immigration office. If you remain in Australia without a valid visa you risk being detained and removed if you are located by the Department. You may also incur a cost to the Australian Government for the cost of the detention and/or removed. See:
Community Status Resolution Service

Your visa status is important

You are expected to remain engaged with us and, if you are in Australia, you are expected to continue to make arrangements to depart even if you have made a request for ministerial intervention.

Unless you are in immigration detention, the Minister expects you to hold a current visa throughout the processing of your request for intervention. The Minister does not want to consider requests from people in the community who are unlawful non-citizens. If you are in the community and are an unlawful non-citizen, we will finalise your request without further processing.

This means that you must hold a bridging or other visa, or have applied for a bridging visa.

If you have any questions about your immigration status while your request is in processing, or if you have received a letter from us asking you to make contact about your immigration status, you should contact us quickly. See:
Community Status Resolution Service

An alternative pathway for partners

If you are the partner of an Australian citizen, permanent resident or eligible New Zealand citizen you could be eligible to make an application for a Partner visa even if you have been refused another type of visa while in Australia.

The Minister has indicated that it is inappropriate to consider requests from person who may be eligible to apply for a
Partner visa. The Minister expects us to finalise such requests without further processing.

If you have been refused a Partner visa already while in Australia, the Minister has indicated that it is
inappropriate to consider your case under the public interest powers. The Minister expects us to finalise such requests without further processing.

When you can make a request

You might be able to make a request for ministerial intervention if you have received a decision by a merits review tribunal. This means the Administrative Appeals Tribunal (AAT) and, for review decisions made before 1 July 2015, the Migration Review Tribunal and the Refugee Review Tribunal.

The Minister’s powers are not available in the following circumstances:

there is no review decision by a merits review tribunal

a Minister has already intervened to grant a visa

a tribunal has found that it does not have jurisdiction to review a decision

a tribunal has found that the review application was made outside the time limits

a tribunal has returned your case to us for further consideration and one of our decision-makers has made a subsequent decision on your case.

We will let you know in writing if your request cannot be considered under the Minister’s public interest powers for one of these reasons.

You should not discontinue any application for judicial review on the expectation that the Minister will intervene in your case because only a small number of requests for ministerial intervention are successful.

If you are represented by a registered migration agent or an exempt person, you must provide a completed form 956 which should indicate that your representative is authorised to deal with us in relation to the specific matter of ministerial intervention.

If you want us to communicate with a person who is not a registered migration agent or an exempt person (where form 956 applies), or to send documents in relation to your request to an authorised recipient, you must provide both a completed
form 956A and a written authorisation for the authorised recipient to act on your behalf.

Including family members

You can only include family members in your request if they have also had a merits review tribunal decision in their case.

How to make a request

You or your authorised representative can write to the Minister to request ministerial intervention.

You need to identify exactly who is included in your request, tell us your departmental reference number (such as your Client Identity number) if you know it, and provide a copy of your tribunal decision so that we can quickly identify your case.

You must provide information about your circumstances and why you consider them to be unique or exceptional. You must include all relevant supporting documentation. We are not obliged to request further information from you and will generally make an assessment on the documents you provide in the first instance.

Provision of documents

Please do not provide information on removable electronic devices such as USBs and CD-ROMs. Such removable devices cannot be accessed by the Department in accordance with our information and communications technology security policy.

You should provide certified copies of any documentation that supports your claims at the time of your request. Where you cannot provide supporting documentation, you should tell us why the documents are not available or why it is not reasonable for you to provide this information. If you do not provide supporting documentation, or compelling reasons for why it cannot be provided, we might not place weight on your claims.

Certified copies are copies authorised, or stamped as being true copies of the original. In Australia, copies can be authorised by a magistrate, Justice of the Peace, Commissioner for Declarations, solicitor, registered medical practitioner, bank manager, postal manager and an Australian Public Service officer with five years or more service. For a full list of people who can certify documents please see the
Statutory Declarations available through the Attorney-General’s Department website.

If you want to have a document certified outside Australia, please contact the closest Australian mission for details of people who can certify documents in that country. See:
Immigration Offices Outside Australia

Documents not written in English must be accompanied by an accurate English translation of each of those documents. Documents not accompanied by an English translation will not be accepted.

The translation should be undertaken by a translator accredited by the National Accreditation Authority for Translators and Interpreters (NAATI). A list of available translation services is available on the
NAATI website.

We might also ask you to provide additional information after you have provided supporting documents.Example: You could be asked to undertake a health examination, provide police clearances, provide appropriate documentation to support claims that a member of your family is an Australian citizen, or have the genuineness of a claimed relationship tested if we consider it necessary. If we ask you to provide additional information, you must do so within the time-frame specified.

Important note

Do not provide documents on removable electronic devices (such as USBs or CD-ROMs) as these will not be accessed by the Department and will be returned without consideration.

If you choose to leave Australia

If you choose to leave Australia without a return visa while your request for ministerial intervention is still in processing, we will finalise your request without further processing. The Minister’s guidelines indicate that it would be
inappropriate to consider a request in these circumstances.

Unique or exceptional circumstances

The Minister has provided guidance on the types of unique and exceptional circumstances that could be brought to the Minister’s attention.
Note: This list is not exhaustive. Providing the documents listed or meeting one of the unique or exceptional circumstances below does not mean that your request will be successful.

Types of unique or exceptional circumstances

Examples of the different types of documents that could support claims (the types of documents will vary depending on your circumstances)

Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

Documents to support your claims:

a statutory declaration outlining how the Australian citizen or permanent resident will suffer ongoing and irreversible harm and continuing hardship, and any reasons why you cannot apply for a visa from outside Australia

medical/specialist reports where relevant to your claims

medical/specialist reports confirming an Australian citizen or permanent resident needs ongoing and continuous care that is not otherwise available and evidence of the efforts you or your family have made to source care from community and other support services

supporting letter from the Australian citizen or permanent resident to whom you are providing support, or from their family members, including evidence of your relationship to them.

Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.

Documents to support claims that you would suffer serious, ongoing and irreversible harm and continuing hardship if you are returned to your country of origin:

evidence of your age (birth certificate or passport)

evidence of your health status (recent medical/specialist reports)

a statutory declaration outlining how you will suffer irreparable harm and continuing hardship because of your age or ill-health

a letter of support from your family members or from others who are willing to provide you with ongoing care while you are in Australia indicating the nature of the support and care that they are able to provide.

We will check any claims you make about your home country, including your access to appropriate health care.

Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.

Documents demonstrating why you would be of exceptional benefit to Australia:

awards or industry or peer recognition

letters of support from relevant national bodies, for example professional, industry, cultural or sporting bodies

evidence of your English language standard such as the results of an International English Language Testing System (IELTS) language test

evidence of qualifications, for example degrees or membership of a professional body

evidence that your skills are recognised in Australia by a relevant Australian assessment authority

employer references showing you have been employed in your profession or trade

business or financial statements.

Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case.

Documents to demonstrate:

that you have circumstances that were not anticipated by the legislation relevant in relation to the visa that you were refused

how legislation or policy did not intend that a person in your circumstances would be refused a visa

how the refusal of your visa has led to an unfair or unreasonable result.

how the refusal of your visa has led to an unfair or unreasonable result.

You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.

Documents supporting your claims:

evidence of your identity, such as a birth certificate or a genuine travel document issued in your name

evidence that you cannot get or you have been refused a new travel document by your country of citizenship or the country you usually live in.

Inappropriate to consider

The Minister has indicated to us that cases that do not meet the guidelines for referral and which have the types of circumstances described below are inappropriate for the Minister to consider. If your case has one or more of these circumstances, we will finalise it without referral to the Minister and will advise you or your authorised representative in writing:

the request is made by a person who is not the subject of the request or their authorised representative

the person is in the community and:

is an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request

does not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)

the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa

the person’s visa has been cancelled because they breached their visa conditions

the person has had a visa refused because they did not comply with the conditions of a previous visa

the person has been refused a visa or has had a visa cancelled on character grounds

the Australian Secret Intelligence Organisation (ASIO) has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect

the person could apply for a Partner visa onshore but is subject to an 8503 condition (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided

the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the
Migration Regulations 1994 (the Regulations)

the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore

the person has left Australia

the person has an ongoing application for a substantive visa (either onshore or offshore)
with the Department

the person has an ongoing application for merits review of a visa decision with a relevant review tribunal

the person has had a remittal or a set aside decision from a relevant review tribunal or a court

the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E

the person has an ongoing ministerial intervention request under any of the powers covered by these guidelines

a Notice of intention to remove has been issued to the person and the ministerial intervention request has not been initiated by the Department

the person holds a Bridging visa E with visa condition 8512 which specifies that the person must leave Australia by a specified date

the request raises claims only in relation to Australia’s
non refoulement obligations.